Category Archives: intellectual property

The Free Software Foundation (FSF) has gone public with a statement on the Oracle vs Google litigation. The FSF is of course free to do so, and since it’s also a campaigning organisation we should not be surprised when they do. But does the statement itself stand up to scrutiny?

Before going any further, I should make it clear: this is a comment on the FSF’s position statement. No matter where this appears aggregated, I don’t represent anyone or anything other than myself. Any views I may have on the FSF itself, on Oracle or Google, on Java implementations, Android/Dalvik, on patents (software or otherwise) or on anyone/anything else, fall outside the scope of this posting. Nor should this be taken as comment on the FSF beyond this single document: as it happens, I am in general terms an admirer of the FSF.

The introduction is clear enough:

As you likely heard on any number of news sites, Oracle has filed suit against Google, claiming that Android infringes some of its Java-related copyrights and patents. Too little information is available about the copyright infringement claim to say much about it yet; we expect we’ll learn more as the case proceeds. But nobody deserves to be the victim of software patent aggression, and Oracle is wrong to use its patents to attack Android.

That’s fair: the FSF’s position against software patents is rational and consistent. Oracle vs Google is one of many patent cases currently in the courts throughout the rapidly-growing mobile devices space: some other household names that spring to mind include Apple, Nokia, HTC, and of course the victim of the biggest injustice, Blackberry-maker RIM. But it’s also fair to say Oracle vs Google may have more far-reaching repercussions than the others, insofar as it may affect Free Software in the Android ecosystem.

The second paragraph is more problematic:

Though it took longer than we would’ve liked, Sun Microsystems ultimately did the right thing by the free software community when it released Java under the GPL in 2006. […]

Now Oracle’s lawsuit threatens to undo all the good will that has been built up in the years since. Programmers will justifiably steer clear of Java when they stand to be sued if they use it in some way that Oracle doesn’t like. […]

Hang on! How is that new? The entire TCK issue is about field-of-use restrictions that are problematic for free software! At the same time, let’s not forget that Java was hugely popular among Free Software developers even before 2006: these controversies matter only to an activist minority.

If the above is nitpicking, paragraph 4 is altogether more suspect. Let’s quote it in full:

Unfortunately, Google didn’t seem particularly concerned about this problem until after the suit was filed. The company still has not taken any clear position or action against software patents. And they could have avoided all this by building Android on top of IcedTea, a GPL-covered Java implementation based on Sun’s original code, instead of an independent implementation under the Apache License. The GPL is designed to protect everyone’s freedom—from each individual user up to the largest corporations—and it could’ve provided a strong defense against Oracle’s attacks. It’s sad to see that Google apparently shunned those protections in order to make proprietary software development easier on Android.

Erm, this really is an attack on Apache! How would IcedTea have helped here? The only valid argument that it might have done is that rights were granted with Sun’s original code. I don’t think it’s clear to anyone outside the Oracle and Google legal teams whether and to what extent such ‘grandfather’ rights might affect the litigation. As far as licenses are concerned, the Apache License is a lot stronger on protection against patent litigation than the GPLv2 under which IcedTea is licensed. Indeed, in separate news, Mozilla (another major player in Free Software) is updating its MPL license, and says of its update:

The highlight of this release is new patent language, modeled on Apache’s. We believe that this language should give better protection to MPL-using communities, make it possible for MPL-licensed projects to use Apache code, and be simpler to understand.

Well, Mozilla is coming from a startingpoint closer to the GPL than Apache. It seems I’m not alone in supposing the Apache license offers the better patent protection, contrary to the FSF’s implication!

Finally the tone[1] of the FSF statement, as expressed for example in the final paragraph, makes me uneasy:

Oracle once claimed that it only sought software patents for defensive purposes. Now it is using them to proactively attack free software.

Hmmm, attacking Android/Dalvik is proactively attacking free software? While it’s a supportable position it’s also (to say the least) ambiguous, and you haven’t made a case to convince a sceptic. Or a judge.

[1] Not to mention the grammar, up on which some readers of this blog will undoubtedly pick.

Remember SCO? The world’s saddest, most ludicrous software company? Well, if not, Groklaw has a rich and colourful (not to mention opinionated) archive on the subject.

The ghost of SCO has long since joined that of Jarndyce & Jarndyce, the perpetual litigants. But this week, an actual decision by a Utah jury: Novell owns the Unix copyrights.

Some believe SCO’s litigation was inherently doomed: there’s nothing to be had from Unix IP. Yes, there’s value, but that’s long-since been opened to the world, and of course independently re-engineered elsewhere, most importantly in GNU/Linux.

Others take a different view: there’s gold beyond the dreams of avarice in that Unix IP. SCO had a great idea; they just made a hash of executing it. After all, in the real world, pirates have taken such major companies as Blackberry-maker RIM and even Microsoft to the cleaners over IP that is, by any standards, a drop in the ocean set against UNIX.

So when a hedge fund bids for Novell, I expect they’re in the latter camp. They’re not an Oracle, a huge and powerful software company getting Sun, a crown-jewel complementary company on the cheap. They’re a pure money-machine. They have no business to fit Novell’s. So it seems likely they want the crown jewels of Novell’s IP.

That was before the jury declared Novell owner of such an important part of the IP! It must be worth more now, to a cash-rich wannabe-pirate.

Novell under current management has shown itself benign, and hero of the SCO story. Under other management, all bets would be off. The fact that they rejected one bid (or did they?) doesn’t necessarily mean they’ll always be able to do so – that’s up to the shareholders.

How much is it worth to lay that spectre to rest? Are you a shareholder, and if not, why not?

We all know that the old-meeja go on at length about filesharing, copyright theft, internet piracy, call it what you will. So it was no surprise to hear it rehashed on the beeb yesterday evening. Usual format: an interviewer, and two people with opposing views to debate it.

I only caught bits of it: I was cooking my supper and not really listening. But one thing struck me: one of the debaters said that everyone fileshares. This was quite an emphatic everyone, and he clearly intended to distinguish the sense from a typical apologist’s appropriation of everyone to a manifest falsehood like “everyone supports the olympics”. Nor was it an Orwellian with-menaces everyone, as in you’re misogynist racist pedophile terrorist scum and beneath contempt if you dare to question us.

Since it clearly is an apologist’s everyone, that must be a bit of willy-waving (“my everyone is bigger than your everyone”). But more striking is that neither the interviewer nor the opposing debater made any attempt to challenge it: indeed, they seemed to agree with it. Perhaps it really is true in meeja-luvvie circles?

Then it struck me: this is exactly like the meeja discussion of online porn was ten years ago. We’ve got used to the Beeb being our (UK’s) self-proclaimed leading website. But for a few years after they first noticed the ‘net, you’d never hear it discussed without someone blathering about online porn. If you didn’t know better, you’d have thought that the ‘net revolved around porn and everyone was into it.

As someone with an altogether different vision of the ‘net, I found the association rather distasteful, and some aspects downright offensive[1]. Like, ratings for websites having an implicit assumption that every site might need them, without even a default category for “no sex or violence not because we’ve toned it down and pitched it at children, but because this website is all about coffee, computers, or astronomy”. Should I declare my websites as having mild/inoffensive sex and violence (the lowest PICS category) just to avoid the risk of being blocked by family-safe services that block unrated sites to protect children? Absurd and offensive!

Worse, the association with porn put barriers in the way of those of us who wanted to promote the ‘net for altogether good, constructive purposes.

So if filesharing is the new porn, what lessons can we draw? The optimistic view is ignore the hot-air and it’ll go away, just as the meeja’s porn-fixation went away when the BBC decided it was going to be top-website itself.

But maybe it’s not the same: the porn message was rooted in the ‘net being a “new frontier” for the meeja and their mass audience, while the filesharing one is driven by powerful commercial interests, some of whom are the world’s biggest unauthorised profiteers from other people’s efforts (“thieves” or “pirates”, in their own language). And I don’t just mean things like Disney famously copyrighting everything from common cultural heritage (fairytales) to african music in the lion king: people better-informed than I describe altogether more sinister practices like identity theft.

On the other hand, Big Pirates never succeeded in getting the photocopier or the cassette tape banned. I expect those who persist in fighting technology will continue to fight a losing battle, and the meeja attention will indeed blow over. Just as it did with porn on the ‘net.

[1] Nothing against pornographers. Just so long as I’m free to steer clear of their work, it’s live-and-let-live. Same principle as when I was doing research in a department right in the red light district: we (geeks) didn’t bother the ladies of the night, and they didn’t bother us. But I’d have been mildly pissed off if the world assumed that the reason I worked there was because of them, and seriously so if my work was belittled or dismissed on that basis.

As I understand it, Novell only had to demonstrate that they had a reasonable belief that they owned the copyrights, so a declaration that the ownership was unclear would have sufficed for them to defeat SCO’s central case against them. But of course after years, and millions of dollars of lawyer, there’s more to it than that.

This also impacts on all the other cases:

IBM: SCO tried to tell them to cease and desist their UNIX business because of alleged breaches of contract. Novell said that was nonsense and IBM was fine to continue. The judge has just ruled than Novell was entitled to do that. So yet more of **the** SCO case falls.

Redhat: the whole case looks even more moot.

The Linux end-user cases: well, does anyone remember or care about them? Even the one that wasn’t already thrown out of court.